Despite the fact that even the staunchest supporters of Article 13 were asking for it to be dropped from the final version of the EU Copyright Directive, that didn’t happen. In the final trilogue negotiations between the EU Council, the EU Commission and the EU Parliament, it appears that the agreed upon “compromise” is basically as bad as we feared. It will fundamentally change the entire nature of the internet. And not in a good way. As we recently discussed, the only way this makes sense is if the goal is to have the law be so bad that big internet companies feel forced to pay their way out of it.
And it appears that’s what we’ve got. MEP Julia Reda’s summary of the final deal highlights many of the problems with both Articles 11 and 13. Here’s the mess with Article 13:
Commercial sites and apps where users can post material must make “best efforts” to preemptively buy licences for anything that users may possibly upload – that is: all copyrighted content in the world. An impossible feat.
In addition, all but very few sites (those both tiny and very new) will need to do everything in their power to prevent anything from ever going online that may be an unauthorised copy of a work that a rightsholder has pointed out to the platform. They will have no choice but to deploy upload filters, which are by their nature both expensive and error-prone.
Should a court ever find their licensing or filtering efforts not fierce enough, sites are directly liable for infringements as if they had committed them themselves. This massive threat will lead platforms to over-comply with these rules to stay on the safe side, further worsening the impact on our freedom of speech.
And with Article 11:
The final version of this extra copyright for news sites closely resembles the version that already failed in Germany – only this time not limited to search engines and news aggregators, meaning it will do damage to a lot more websites.
Reproducing more than “single words or very short extracts” of news stories will require a licence. That will likely cover many of the snippets commonly shown alongside links today in order to give you an idea of what they lead to. We will have to wait and see how courts interpret what “very short” means in practice – until then, hyperlinking (with snippets) will be mired in legal uncertainty.
No exceptions are made even for services run by individuals, small companies or non-profits, which probably includes any monetised blogs or websites.
If this becomes law, I’m not sure Techdirt can continue publishing in the EU. At the very least, it will require us to spend a large sum of money on lawyers to determine what our liability risk is — to the point that it might just not be worth it at all. Article 13 makes a commenting system untenable, as we simply cannot setup a filter that will block people from uploading copyright-covered content. Article 11 potentially makes our posts untenable, since we frequently quote other news sites in order to comment on them (as we do above).
This is, of course, the desire of those supporting both bills. It is not just to close the (made up, mythical) “value gap.” It is to fundamentally change the internet away from an open system of communications — one that anyone can use to bypass traditional gatekeepers, to a closed “broadcast” system, in which key legacy gatekeepers control access to the public, via a complicated set of licenses that strip all of the benefits and profits from the system.
Not only will this do great harm to the general public’s ability to communicate freely over the internet, it will do massive harm to artists and creators — especially more independent ones, who will be effectively blocked from using these platforms to connect directly with their fans. Rather they will be required to go through “licensed” intermediaries, who will demand a huge cut of any money. In other words, it’s a return to the pre-internet days, where if you wanted to become a professional creator, your only options were to sign away all your rights to giant conglomerate record labels/studios/publishers.
It is incredible — and incredibly disappointing — that the EU is moving towards bringing back such a world, but that is what the latest agreement means.
There is still a chance to stop this from becoming law, though it will take a lot of effort. As Reda explains:
We can still stop this law
The Parliament and Council negotiators who agreed on the final text now return to their institutions seeking approval of the result. If it passes both votes unchanged, it becomes EU law, which member states are forced to implement into national law.
In both bodies, there is resistance.